Flanders v. Sherman, 18 Wis. 575

Flanders v. Sherman

18 Wis. 575 | Wis. | 1864

By the Court,

Cole, J.

We are satisfied from the record and *591evidence in tbis case, tbat Johnson was authorized to receive notice of tbe motion to satisfy tbe judgment, and to appear in bebalf of tbe plaintiffs and resist tbat motion. He acted as one of tbe attorneys of tbe plaintiffs in tbe cause, and tbe decided weight of evidence is in support of tbe position tbat be did so in pursuance of bis employment and retainer as one of tbeir attorneys. It is true tbat Flanders swears, in bis affi davit, tbat Johnson was not, at tbe time of tbe service of the motion papers upon him, one of the attorneys for tbe plaintiffs, or in any way connected with tbe cause by their authority; and yet be says tbat he was consulted by him in certain points subsequent to tbe commencement of tbe suit, and tbat he was paid bis bill of fees at an early day after judgment was obtained. Johnson swears tbat be was employed by Flanders at the September term of the circuit court, 1859, as an attorney, and was requested to take special charge and exclusive management of tbe cause for tbe plaintiffs from tbat time forward. His name is signed as one of the attorneys of tbe plaintiffs to tbe memorandum or indorsement on the stipulation upon which judgment was entered. That stipulation appears to have been signed by tbe parties themselves, while tbe attorneys sign the memorandum consenting tbat an order be entered in tbe cause for tbe late sheriff to deliver to the then acting sheriff tbe property seized under tbe attachment, and that tbe latter proceed to collect the same after tbe day therein named. Now, when we consider the nature and object of the stipulation, and tbe nature and object of the memorandum thereon indorsed, it is difficult to believe that the plaintiffs were not fully cognizant of tbe terms of the memorandum, or were ignorant of tbe names of tbe attorneys who bad signed it on their bebalf. If Johnson bad not been retained as one of tbe attorneys of tbe plaintiffs, and had no authority to appear and act for them in tbe cause, bow did it happen tbat bis name was signed as one of their attorneys on a paper so important as this stipulation ? Besides, it appears tbat Johnson drew up *592tbe order for judgment. Without alluding to other facts and circumstances tending strongly to support the conclusion, we have no doubt, from the above evidence alone, that Johnson was one of the plaintiff’s attorneys in the cause, and that the defendants were authorized to treat him as such. Under our statute, the relation of an attorney to the cause does not cease on the recovery of judgment, unless terminated by his client. The amount of the judgment can be paid the attorney of record, who is expressly authorized to execute an acknowledgment of the satisfaction of such judgment, at any time within two years from the filing of the record, in the same manner and with like effect as if made by the party himself: and such satisfaction is made conclusive against the party in whose favor the judgment was rendered, except as to persons having actual notice of a revocation of the authority of the attorney. Section 48, chap. 182, R. S. And where a party has an attorney in the action, the service of papers is required to be made upon the attorney instead of the party himself. Section 43, chap. 140. And considering that the plaintiffs in this case were non-residents, we cannot doubt that the service of the motion papers to satisfy and discharge the judgment was properly made upon the attorney Johnson. He was served with notice of the motion, and appeared and resisted it. And while we are frank to say that we think it was his clear duty to confer with the plaintiffs in regard to that motion, and thus give them an opportunity to meet it, yet we cannot treat the case as though no proper notice of the motion had been served.

It is insisted that the order of the court satisfying or discharging the judgment was erroneous. We should probably be of that opinion if the question as to the correctness of this order was before us. But it is not. This is an appeal from an order vacating the order satisfying the judgment, and restoring it in all things against the defendants. More than two years elapsed from the entry of the order satisfying the judgment before application was made to vacate this order, and *593this application was not made until more than a year after the plaintiffs had actual knowledge of it. Now assuming, as we feel fully authorized to do in view of the facts of the case, that the judgment was improperly satisfied in the first instance, and that the plaintiffs would have been entitled to have had the satisfaction set aside, had they made a motion for that purpose in season, the question is, have they lost that right by the de» lay? By section 38, chap. 125, R. S., it is provided, among other things, that the court may, in its discretion and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding against him through his mistake, inadvertence, or surprise, or excusable neglect. As already stated, we think Johnson was authorized to receive notice of the motion. But inasmuch as he neglected to correspond with the plaintiffs upon the subject of that motion and give them an opportunity to resist it, we think it was a case of “excusable neglect,” from which the court might have relieved them, providing they had made the motion within a year from the time they had notice of the entry of the order. Edwards v. The City of Janesville, 14 Wis., 26; Johnson v. Eldred, 13 Wis., 482; Spafford v. Oity of Janesville, 15 Wis., 474. But unless the motion is made within a year from the time the party has notice of the erroneous order or judgment, the court cannot relieve under this statute. It must be made within a year, as the power of the court to grant the relief is expressly limited to that period. After the lapse of that time the court cannot relieve a party from an order or judgment against him through his “mistake,” “ inadvertence,” “ surprise” or “ excusable neglect.” This was undoubtedly a case of “ excusable neglect,” if Johnson was authorized to receive notice of the motion, as we hold he was. See Park v. Church, 5 How. Pr. R, 381; Whitney v. Kenyon, 7 id., 458; Van Benthuysen v. Lyle, 8 id., 312; Whitehead v. Pease et al., 9 id., 35. The counsel for the respondents contends that this statute does not apply to the and we *594to Dederick v. Richly, 19 Wend., 108, and The Manufacturer's and Mech. Bank v. Boyd, 3 Denio, 257, in support of the position. In each of those cases, however, the judgment was entered without authority, against a party not before the court. Here the attorney of the plaintiffs was served with notice, and appeared on the hearing of the motion. This circumstance distinguishes the case from those just cited, and renders those decisions inapplicable.

We are constrained, therefore, to reverse the order in this case, because the motion was not made within a year after the respondents had notice of the satisfaction of the judgment.